72 Good faith as an example

The principle of good faith can serve as an example. In many laws the principle is accepted as fundamental, but it is not accorded the same recognition in the laws of all the Member States. In some systems it is not recognised as a general rule of direct application. It is true that such systems contain many particular rules which perform the same function as a requirement of good faith, in the sense that they are aimed at preventing the parties from acting in ways that are incompatible with good faith, but there is no general rule. So the European legislator cannot assume that whatever requirements it chooses to impose on consumer contracts in order to protect consumers will always be supplemented by a general requirement that the parties act in good faith. If it wants a general requirement to apply in the particular context, in all jurisdictions, the legislator will have to incorporate the requirement into the Directive in express words — as of course it did with the Directive on Unfair Terms in Consumer Contracts.52. Alternatively, it will need to insert into the Directive specific provisions to achieve the results that in some jurisdictions would be reached by the application of the principle of good faith. To take another example, in drafting or revising a Directive dealing with pre-contractual information, legislators will want to know what they need to deal with and what is already covered adequately, and in a reasonably harmonious way, by the law of all Member States. Thus general principles on mistake, fraud and provision of incorrect information form essential background to the consumer acquis on pre-contractual information. In this sense, even a ‘legislators' guide’ needs statements of the common principles found in the different laws, and a note of the variations. It needs information about what is in the existing laws and what can be omitted from the acquis because, in one form or another, all Member States already have it.